Southeast Alaska Conservation Council v. Watson
| Decision Date | 13 November 1981 |
| Docket Number | No. J81-12 Civil.,J81-12 Civil. |
| Citation | 526 F. Supp. 202 |
| Parties | SOUTHEAST ALASKA CONSERVATION COUNCIL, INC., Plaintiff, v. James WATSON, Forest Supervisor, United States Forest Service, John Sandor, Regional Forester, United States Department of Agriculture, Max R. Peterson, Chief, United States Forest Service, John B. Crowell, Assistant Secretary of Agriculture, John R. Block, Secretary of Agriculture, Defendants, and Pacific Coast Molybdenum Company and United States Borax and Chemical Corporation, Intervenors-Defendants. |
| Court | U.S. District Court — District of Alaska |
Michael T. Thomas, Anchorage, Alaska, Clyde O. Martz, Charles L. Kaiser, Davis, Graham & Stubbs, Denver, Colo., for intervenors-defendants.
Durwood J. Zaelke, and Michael R. Sherwood, Sierra Club Legal Defense Fund, Inc., Juneau, Alaska, for plaintiff.
Cynthia L. Pickering, Atty., Land and Natural Resources Division, U. S. Dept. of Justice, Sue Ellen Tatter, Asst. U. S. Atty., Michael Spaan, U. S. Atty., Anchorage, Alaska, for defendants.
THIS CAUSE comes before the court on review of defendants' approval of certain mining activities within the Misty Fjords National Monument. The court's jurisdiction arises under the laws of the United States. 28 U.S.C. § 1331(a).
In 1974, U.S. Borax and Chemical Corporation (U.S. Borax) conducted a geochemical exploration program within the Tongass National Forest in southeast Alaska. The exploration led to the discovery and acquisition of mining claims in a substantial molybdenum deposit.1 The deposit is located in Quartz Hill, a knoll in an elevated valley in a mountainous region of the Misty Fjords National Monument.2 The Misty Fjords National Monument is administered by defendant Forest Service, an agency within the Department of Agriculture.
Based on information through 1979, it is estimated that Quartz Hill contains one of the largest known molybdenum deposits in the world. Quartz Hill could hold as much as ten percent of the world's known minable molybdenum reserves, and could supply as much as eighteen percent of the world's molybdenum demand.3
Since the 1974 discovery of molybdenum at Quartz Hill, U.S. Borax has engaged in various exploration activities. Specifically, the exploration activities have included geologic and aerial topographic mapping, surface surveying, core drilling, collection of surface samples and environmental baseline data, as well as the construction of a small exploration and development camp.4
In 1976 U.S. Borax sought to expand its exploration activity. It submitted a plan of operation, for Forest Service authorization, to construct a surface access road for bulk sampling.5 Bulk sampling would be used to verify the extent and quality of the deposit, and to evaluate possible mining and milling processes.6 Following preparation of an environmental impact statement (EIS), which addressed an access road for bulk sampling and the bulk sampling phase,7 the Forest Service approved the plan. On appeal, however, the approval was overturned by the Secretary of Agriculture, who determined that the use of helicopter, rather than a road for access, would be adequate for bulk sampling.8
In 1979, U.S. Borax submitted an operating plan which proposed certain exploration on the claim including bulk sampling with helicopter access.9 Approval was obtained for continued exploratory drilling, but withheld for bulk sampling.10 The Forest Service asserted that any bulk sampling activity must be evaluated within the context of a separate in-depth environmental analysis.11
On 2 December, 1980, the Alaska National Interest Lands Conservation Act of 1980 (ANILCA), Pub.L.No.96-487, 94 Stat. 2371 (1980), was signed by President Carter.12 Section 503 of ANILCA covered the National Forest System and specifically addressed U.S. Borax's mining claim at Quartz Hill. Special allowance was made for holders of valid mining claims within Misty Fjords National Monument. Additionally, the access road for bulk sampling and the bulk sampling phase proposed by U.S. Borax were addressed.
Following enactment of ANILCA, the Forest Service approved certain amendments to U.S. Borax's 1980-83 plan of operations.13 After appealing the Forest Service approval of the Borax amendments,14 plaintiff brought suit in this court alleging that the approved 1980-83 amendments involve bulk sampling as previously proposed by U.S. Borax. Bulk sampling, plaintiff contends, cannot be authorized until an EIS is prepared as required by ANILCA. Additionally, plaintiff maintains that regardless of ANILCA the National Environmental Policy Act of 1969 (NEPA) requires an EIS prior to authorization of the 1980-83 amendments.15
Federal defendants and intervenor-defendants argue that the authorized amendments do not involve bulk sampling. Moreover, they assert that neither ANILCA nor NEPA require an EIS since the Forest Service has found that the amendments do not involve a major federal action which significantly affects the environment.
Initially, the court finds that plaintiff has standing to bring this action. Plaintiff alleges that its members have used and will continue to use the area proposed to be mined, as well as contiguous areas. Further plaintiff maintains that failure to prepare an EIS creates a risk that serious environmental impacts may be overlooked.
Plaintiff has made a sufficient allegation of a particularized injury. United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689 n. 14, 93 S.Ct. 2405, 2417 n. 14, 37 L.Ed.2d 254 (1973). Additionally, plaintiff has demonstrated a traceable causal connection between the claimed injury and the challenged conduct, Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72, 98 S.Ct. 2620, 2629, 57 L.Ed.2d 595 (1978), and a strong likelihood that the requested relief will redress the claimed injury. Id. at 75 n. 20, 98 S.Ct. at 2631 n. 20.
In reviewing the Forest Service decision, the court must first determine the scope of its review. Here the court agrees with defendants; the court may not go outside the administrative record in this case.
Scope of review involves the extent of the court's inquiry in applying the standard of review. Asarco, Inc. v. U. S. Environmental Protection Agency, 616 F.2d 1153, 1158 (9th Cir. 1980). The predominate rule on scope of review was summarized in Asarco: "Agency action must be examined by scrutinizing the administrative record at the time the agency made its decision." Id. at 1159. When a reviewing court considers evidence outside the administrative record, it runs the risk of improperly substituting its judgment for that of the agency. The court must only consider whether the Forest Service made an erroneous decision based on the record before it. "If the court determines that the agency's course of inquiry was insufficient or inadequate, it ... will remand the matter to the agency ...." Asarco, 616 F.2d at 1160; Proietti v. Levi, 530 F.2d 836, 838 (9th Cir. 1976) ().
Determining the proper standard of review requires recognition that the Forest Service has made two decisions — one procedural and one substantive. The decision not to prepare an EIS prior to allowing the proposed amendments is procedural, while the decision to allow the proposed amendments is substantive. Cf. Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1020 (9th Cir. 1980) ().
In determining whether the Forest Service properly declined preparation of a full EIS, the court must consider whether the Forest Service's action was reasonable. Portela v. Pierce, 650 F.2d 210, 213 (9th Cir. 1981); City and County of San Francisco v. United States, 615 F.2d 498, 500 (9th Cir. 1980). The reasonableness of the procedural decision not to prepare an EIS is dependent on whether the Forest Service complied with ANILCA. Thus, the court must determine the requirements of ANILCA in reviewing the reasonableness of the Forest Service's decision.
When reviewing the Forest Service's substantive action allowing U.S. Borax to commence operation under the 1980-83 amendments, the court must look to § 706(2)(A) of the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-06 (1976). See Warm Springs, 621 F.2d at 1027. Subsection (A) requires the court to set aside the Forest Service decision if it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." APA § 706(2)(A). When applying subsection (A) the court must consider whether the decision was based "on a consideration of all the relevant factors and whether there has been a clear error of judgment." Citizens To Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). If, however, the Forest Service has failed to provide a reasonable basis for the procedural decision, the court will not have to reach the merits of the substantive decision.
Finally, the court recognizes that great weight must be given to the Forest Service's interpretation of ANILCA. See Nance v. Environmental Protection Agency, 645 F.2d 701, 714 (9th Cir. 1981). Nevertheless, the Forest Service's interpretation of ANILCA is neither infallible nor always controlling, since the court is the final authority on important questions of statutory construction. Patagonia Corp. v. Board of Governors of the Federal Reserve System, 517 F.2d 803, 812 (9th Cir. 1975). If there are compelling indications that the Forest Service's interpretation of ANILCA was wrong, the court will not defer to its interpretation. Id.
The requirements of § 503 of ANILCA determine whether the Forest Service's decision...
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